Bangalore District Court
State Of Karnataka Represented By vs Venkataramanappa on 29 November, 2021
KABC010097482018
IN THE COURT OF XXIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE ( P.C. Act) BENGALURU (C.C.H.No.24)
Dated: This the 29th day of November, 2021
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.211/2018
Complainant: State of Karnataka represented by
Police Inspector, Anti Corruption
Bureau, Bengaluru Urban Police
station, Bengaluru.
(By Special Public Prosecutor)
V/s
Accused : Venkataramanappa,
Water inspector, office of the
assistant executive engineer,
Bengaluru Water Supply and
Sewerage Board, South Division-1,
Kumara swamy layout Seva Station,
Kumara swamy layout, Bengaluru and
also at No.5, 2nd cross, Devagiri
nilaya, Kanaka nagara, KS layout, 2nd
stage, Bengaluru.
(By Sri. S.B.Suman, Advocate)
2 Spl.C.C.211/2018
JUDGMENT
The Police Inspector, Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") has laid the charge sheet against the accused for the offence punishable under sections 7, 13(1)
(d) read with section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
Brief facts of the case:-
2(a). It is the prosecution case that, the accused was working as Water Inspector in the office of Assistant Executive Engineer, Bengaluru Water Supply and Sewerage Board (in short the 'BWSSB'), Bengaluru. The informant PW-1 Sri. Lakshmi Nagendra Prasad is claimed to be the contractor under BWSSB. Smt. Thejaswini/P.w.6 and one Premakumar ( in short 'the applicants') alleged to have approached PW-1 and authorized him to obtain water and sewerage connection to their newly constructed residential building situated at Kumaraswamy layout, Bengaluru. In pursuance, PW.1 has submitted an on-line application to BWSSB on 29.6.2017 on behalf of the aforesaid applicants. Thereafter when PW-1 had approached the accused in this regard, he had sent PW-7 Govindaraju to make inspection of the site. The grievance of 3 Spl.C.C.211/2018 the informant is that the accused had demanded bribe amount of Rs.20,000/- per each house water connection. PW- 1 claims to have recorded the conversation with the accused in his mobile phone. Since PW-1 was not inclined to make payment of bribe, on 4.7.2017 he approached the ACB Police, Bengaluru and lodged Ex.P1 report. In pursuance of the said information, they have registered Ex.P-19 FIR against the accused in Crime No.27/2017 for the offence punishable under Section 7 of the PC Act.
2(b) After registration of the case, on 4.7.2021 PW-.11 the Investigating Officer (in short 'IO') had secured presence of PW-3 and 4, two independent witnesses as panchas and drawn Entrustment panchanama as per Ex.P-6. On 05-07- 2021, when PW-1 approached the accused and asked his pending water connection work, the accused has demanded and accepted tainted cash of Rs.20,000/- in the office of BWSSB, Kumaraswamy layout, Bengaluru. After receiving pre- arranged signal from the informant, the raiding team entered the premises, arrested the accused, laid a successful trap and tainted currency was recovered from his possession. The accused was subjected to undergo chemical hand wash test and other post trap procedures. After completion of 4 Spl.C.C.211/2018 investigation and on obtaining scientific examination report, chemical analysis report and sanction order, the charge sheet came to be filed.
3. After taking cognizance of the offence and on securing presence of the accused, complied section 207 Cr.P.C. by suppling copy of the prosecution charge sheet. After hearing both sides, this Court has framed the charges for the alleged offence against the accused. He pleaded not guilty and claimed for trial.
4. To bring home the guilt of the accused, the prosecution has examined the informant Sri. Lakshmi Nagendra Prasad as PW-1 and through him got marked nine documents as per Ex.P1 to Ex.P8 and Ex.P16. The relative of PW-1 by name Sri. Jyothi Prakash was examined as PW.2 and two panchas of the prosecution case by name Sri.K.N.Ramarao and Sri. B.Bheemaraju were respectively examined as P.W.3 and 4. The Chairman of BWSSB and Sanctioning Authority Sri. Tushar Girinath was examined as PW.5 and sanction order Ex.P13 came to be marked while he was under examination. Sri. Premkumar, one of the applicants to BWSSB was examined as PW-6. Sri. Govinda Raju, a 5 Spl.C.C.211/2018 plumber and contractor was examined as P.W.7. P.W.8 Mallikarjuna Thimmalapura, Nodal Officer under Reliance communications Ltd., and he has issued Ex.P-18 mobile phone No. 9342443960 call detail register of the accused. P.W.10 Johnson Tom is the Nodal officer at Bharathi Airtel Ltd., and he has issued call detail records of mobile No. 9036172251 belonged to the informant as per Ex.P-20. P.W.9 Anthony John, Dy.S.P. has been examined and he deposed regarding recording of the statement of P.W.1 as per Ex.P-5 and registration of Ex.P19 FIR. PW.12 Smt.Chandrika G. Assistant Director of FSL was examined and through her Ex.P.69 speech comparison report was marked. P.W-.11 Subramanya Swamy M.L. has been examined and he is the investigating officer who has conducted the entire investigation and has filed charge sheet.
5. After completion of prosecution side evidence, incriminating circumstances appearing against the accused in the prosecution side oral evidence were formulated in the form of questions and the accused was examined as required under Section 313(1)(b) of Cr.P.C. The accused did not choose to lead defence evidence, however, he has filed written statement of his defence.
6 Spl.C.C.211/2018
6. Heard the arguments of learned Special public prosecutor and the learned defence counsel. The learned Special Public Prosecutor has submitted synopsis of the case and relied upon following reported judgments.
1) (2008) 8 Supreme Court Cases 571 Madhukar Bhaskarrao Joshi Vs. State of Maharashtra
2) (2009) 9 Supreme Court Cases 752 State of U.P. Vs. Kommaraju Gopala Krishna Murthy.
3) (2001) 1 Supreme Court Cases 691 M.Narsinga Rao Vs. State of A.P.
4) (2006) 12 Supreme Court Cases 277 B.Noha Vs. State of Kerala and another.
5) (2016) 13 Supreme Court Cases 258 S.C.Goel Vs. State through Central Bureau of investigation.
6) (2008) 11 Supreme Court Cases 681 Raj Rajendra Singh Seth Alias R.R.S.Seth Vs. State of Jharkhand and another.
7) (2009) 11 Supreme Court Cases 708 Krishna Ram Vs. State of Rajasthan.
8) (2015) 11 Supreme Court Cases 361 Kallappa Mallappa Kamble Vs. State of Karnataka.
9) (2015) 7 Supreme Court Cases 283 State of Andhra Pradesh Vs. Venkateshwarlu.
10) (2014) 15 Supreme Court Cases 103 Somabhai Gopalbhai Patel Vs. State of Gujarat.
11) (2012) 7 Supreme Court Cases 80 Narendra Champaklal Trivedi Vs. State of Gujarat 7 Spl.C.C.211/2018
12) (2010) 15 Supreme Court Cases 1 C.M.Sharma Vs. State of Andhra Pradesh.
13) (1980) 2 Supreme Court Cases 390 Hazari Lal Vs. State (Delhi Administration).
14) (1995) 3 Supreme Court Cases 567 M.W.Mohiuddin Vs. State of Maharashtra.
15) (2012) 7 Supreme Court Cases 80 Narendra Champaklal Trivedi Vs. State of Gujarat.
6(b). The learned defence counsel has also submitted a memorandum of written argument and relied upon the following reported judgments in support of his defence.
1) AIR 2012 Supreme Court 858 - Dinesh Kumar Vs. Chairma, Airport Authority of India and Anr.
2) LAWS (KAR) 2004-3-93 of High Court of Karnataka - Rajendran Vs. State by Police Inspector, B.O.I.
3) AIR 2014 Supreme Court 827 - C.B.I. Vs. Ashok Kumar Aggarwal.
4) AIR 2020 Supreme Court 3327 - Somasundaram Alias Somu Vs. State Rep. By the Deputy Commissioner of Police.
5) Criminal Appeal No.1003 of 2012 of High Court of Karnataka
- Ramaiah Vs. State by Lokayuktha Police, Tumkur.
6) ILR 2017 KAR 5591 of High Court of Karnataka - N.A.Suryanarayana @ Suri Vs. State by Inspector of Police, CBI/SPE/Bengaluru.
7) 2016 Cri.L.J. 3066 of High Court of Karnataka - R.Srinivasan and Anr. Vs. State by Police Inspector, Lokayuktha, Bengaluru.
8 Spl.C.C.211/2018 Prosecution side argument:-
6(c). The learned special public prosecutor has argued that PW5 in his evidence has specifically stated that the BWSSB (the Board) has accorded sanction; the prosecution has placed all the documents before the sanctioning authority and PW-5 in discharge of his ministerial act has passed Ex.P13 order as per the direction of the Board. The said order is a speaking order and hence the sanction is valid in the merits of the case.
6(d). The learned Special Public Prosecutor has further argued that the applicants have appointed and issued an authorization letter in favour of PW.1 for obtaining water and sewerage connection to their newly constructed houses. It is not in dispute that the accused was working as water inspector. It is submitted on behalf of the prosecution that there is sufficient evidence to show that the accused has demanded the bribe amount of Rs.20,000/- per each water connection and received an amount of Rs.20,000/- from the informant and during the trap, the said amount was recovered from his possession. In addition to the oral evidence, there are documentary evidence such as audio and video recording
9 Spl.C.C.211/2018 against the accused. The trap of the accused is proved from the evidence of independent pancha witness as PW.3 and 4 and further corroborated by the report of chemical analyst. Therefore, it is proved from the evidence that the accused has received tainted currency notes from the informant P.W.1. In addition, the accused has failed to prove his defence from the testimony of PW.7 and the defence of the accused is double edged one , which supports the prosecution case. It is argued that PW.7 never deposed that the amount received by the accused which was due to him and in the above circumstances the accused has taken a false defence. For the aforesaid reasons he humbly prayed for an order of conviction.
Defence side argument:-
6(e). Per contra, the learned defence counsel has vehemently argued that Ex.P13 sanction order is defective; it is not in accordance with law and the said order has been passed without application of mind. It is further submitted that PW5 was not authorised officer to issue the sanction order and the Board cannot delegate the power in his favour to pass Ex.P13 sanction order. Secondly, all the documents collected during the investigation were not placed before the
10 Spl.C.C.211/2018 sanctioning authority. The explanation submitted by the accused to the IO was not considered at the time of passing Ex.P13 order.
6(f) It is argued that the demand and acceptance of undue advantage are not proved and they are the basic requirements to constitute the offences under Sections 7 and 13(1)(d) of the PC Act. PW.1 informant, for obtaining water connection submitted incomplete application and he had failed to furnish all the required documents. The accused did not make any phone call to PW.1 in connection with the alleged demand of bribe. The evidence of PW.7 is in- consonance with the defence of the accused throughout from the date of trap and during the entire trial.
6(g). The learned defence counsel has meticulously argued that the accused has proved his defence in much higher degree of proof than the preponderance of probability. PW.1 has not disclosed to the IO that he had sought the service of PW.7 Govindaraju for obtaining water connection to the houses of the applicants. It is the defence of the accused that he had received money from PW.1as advance amount for and on behalf of PW.7, plumber and Contractor Sri. Govindaraju and the said amount was not received as bribe. The learned Counsel has referred to the transcript of 11 Spl.C.C.211/2018 conversation placed by the prosecution and has stated that in the entire conversation there is absolutely no reference of the accused appears to have demanded and accepted the amount towards undue advantage. But on the other hand, the prosecution papers itself show that the accused had collected the amount from PW.1 for and on behalf of P.W.7 plumber/contractor. For the aforesaid reasons, the learned Advocate has prayed for an order of honorable acquittal.
7. After carefully scrutinizing the evidence placed on record, on hearing the arguments and on application of the ratio laid down in the judgments relied by both the parties and its application to the facts of this case to the extent relevant, at this stage, the points that would arise for determination are:
1. Whether the prosecution has proved that it has obtained a valid sanction order as required under Section 19 of the P.C. Act?
2. Whether the prosecution beyond reasonable doubt proves that the accused being a public servant has demanded Rs.40,000/- and accepted Rs.20,000/- illegal gratification from 12 Spl.C.C.211/2018 PW-1 L. Nagendra Prasad on 5.7.2017 at about 3.45 p.m. in the office of Assistant Executive Engineer, BWSSB, South Division, Kumaraswamy Layout, Bengaluru-78 for doing an official act to give water connection to the newly constructed residential premises of Smt. Thejaswini and Sri. Premkumar and thereby he is guilty of the offence punishable under Section 7 of the P. C. Act?
3. Whether the prosecution beyond reasonable doubt proves that the accused being a public servant, by abusing his official position as such public servant demanded Rs.40,000/-
and accepted Rs.20,000/- pecuniary
advantage from PW.1 and thereby
committed an offence of criminal
misconduct punishable under section
13(1)(d) read with section 13(2) of the P.C. Act?
4. What order?
8. My findings on the aforesaid points are:
Point No.1 : in the affirmative
Point No.2 : in the negative
Point No.3 : In the negative
13 Spl.C.C.211/2018
Point No.4 : As per final order,
for the following
REASONS
Point No.1 :
9.(a) The fact that as on the date of trap, more particularly on 5.7.2017, the accused was working as Water Inspector under BWSSB, Bengaluru South is undisputed. Hence, he is a public servant within the ambit of Section 2(c) of the PC Act. In the result, it is incumbent on the prosecution to prove that it has obtained a valid sanction to prosecute the accused as per the mandatory requirement under Section 19 of the PC Act.
9(b). In order to prove the factum of sanction, the prosecution has examined PW5 - Thushar Girinath working as Chairman, BWSSB, Bengaluru and also produced Ex.P13 sanction order. The report of Chief Administration Officer/ Secretary, BWSSB, Bengaluru and copy of the proceedings of the meeting dated 5.2.2018 are produced by the prosecution and marked as Ex.P14 and P15. It is true, as rightly pointed out by the learned defence counsel that Ex.P14 and P15 are the photostat copies and those documents have been marked subject to the objection raised by the accused. The 14 Spl.C.C.211/2018 prosecution even subsequently has not produced duly authenticated copy of Ex.P14 and 15.
9(c). It is the evidence of PW5 that while he was working as Chairman of BWSSB, he had received requisition from ADGP, ACB, Bengaluru along with the documents by seeking an order to accord sanction to prosecute the accused for the alleged offences under the provisions of the PC Act. He has specifically deposed that after receiving the documents, he had placed the requisition seeking sanction before the Board meeting held on 5.2.2018. The Board after thoroughly verifying the facts and documents, had decided to accord sanction to prosecute the accused and had authorised him to pass an order. Accordingly, in furtherance of the decision of the Board, he has passed Ex.P-13 order and sent the said order along with Ex.P14 and P-15 documents to the concerned ACB Police.
9(d). The accused during cross-examination of PW5 has specifically disputed the validity of ExP-13 order and competency of PW5 to pass the said order. When the accused was examined under Section 313 Cr.P.C., he was asked 15 Spl.C.C.211/2018 questions No.64 to 66 touching Ex.P13 sanction order in the evidence of PW-5 and the accused has answered that he is not aware of the proceedings followed in granting of sanction order. It is proper to mention here that the accused has neither disputed the authority of PW5 to pass Ex.P13 sanction order nor PW5 was working as Chairman of BWSSB as on the date he had received the documents from the investigating agency seeking sanction as well as on the date of passing Ex.P13 order.
9(e). During the cross-examination of PW.5, the accused has specifically contended that the witness is not legally authorised to pass Ex.P13 order in the absence of proper delegation of authority. In the case in hand. PW-.5 was also a member of the Board, as a Chairman, and hence he is competent to pass Ex.P13 order in pursuance of the decision or recommendation of the Board. It is not in dispute that the investigating agency has placed all the relevant documents before the sanctioning authority. As per Section 125 of BWSSB Act, the Board is the competent authority to remove the accused from his office and PW5 in his evidence has reiterated this fact.
16 Spl.C.C.211/2018 9(f). It is not the defence of the accused during the cross- examination of PW.5 that the Board has no authority to remove him from his service or some other person has got such authority. The accused has also not disputed during the relevant period, PW.5 was the Chairman of the said Board. He has also not denied the decision was taken in the Board meeting to accord sanction to prosecute him. As per Ex.P14 report, the accused is working as 'C' group employee in BWSSB. It is also not the defence of the accused during cross- examination of PW-.5 that Board has not taken any decision to accord sanction to prosecute him.
9(g). It is the argument of the accused that the IO has not recorded the statement of the witness by name Sri T.Narasimhaiah, Sri Shivapooji, Sri Antony John and Sri M.L.Subramanya. But PW-5 in Ex.P-13 order has mentioned that he had received the statement of the above referred witnesses at the time of passing sanction order. It appears from the evidence of PW.5 and the description as shown in Ex.P13 order, the reference relates to the names of the witnesses cited by the prosecution in the charge sheet.
17 Spl.C.C.211/2018 Merely because in Ex.P13 order, PW.5 has given heading as 'Statement of witnesses' itself is not sufficient to discredit the entire evidence of PW-5 and Ex.P-13 order. There is every reason to believe that the I.O. has sent list of prosecution witnesses to the sanctioning authority and accordingly in Ex.P13 order, PW.5 has shown under the heading statement of witnesses and the names of witness in serial No.1 to 19. When the IO has not recorded the statement of witnesses by name Sri T.Narasimhaiah, Sri Shivapooji, Sri Antony John and Sri M.L.Subramanya, it canot be accepted that Ex.P-13 order caused any prejudice to the accused. It is not the case of the accused that prosecution has deliberately suppressed the statements of above referred witnesses by failing to produce them before the court.
9(h). As per Section 19(3)(a)(b) of the PC Act, merely because there is any error, omission or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court finds that such error or irregularity has resulted in failure of justice. In this connection, the learned defence counsel has relied upon the judgment referred supra in Ashok Kumar Aggarwal case. There is no argument with regard to the ratio laid down in the aforesaid 18 Spl.C.C.211/2018 judgment. But the accused in the case has failed to make out that the prosecution made against him is vexatious. The facts of the case in hand shows that the prosecution had sent the entire relevant records to the sanctioning authority. The materials placed on record show that the authority/Board had been aware of the relevant facts/materials and had applied its mind to the relevant materials before according the sanction and in pursuance of the same PW-5 has passed Ex.P13 order. From the evidence let in by the prosecution and from the contents of Ex.P13, it is proved that the investigation agency had placed before the sanctioning authority the entire relevant facts and after going through the contents, the Board has accorded the sanction and in pursuance, PW-.5 has proceeded to issue Ex.P13 order. In the above circumstances, the argument of the accused that non-production of statement of the alleged witnesses resulted in failure of justice is rejected.
9(i). In view of the above contention of the accused, this Court referred the judgment of Apex Court in Mahesh G.Jain case, reported in (2013) 8 SCC 119. In the said case, the Apex court held that the adequacy of material placed 19 Spl.C.C.211/2018 before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. Therefore, if the sanctioning authority has perused all the materials placed before it and some documents have not been placed before it, that would not vitiate the order of sanction. As per the said judgment, sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. The above ratio laid down by the Apex Court is aptly applicable to the facts and circumstances of the case.
9(J). In the judgment reported in (2012) 3 SCC 64 in the case between Subramanian Swamy Vs. Dr.Manmohan Singh case in para-44 the Hon'ble Supreme Court held that grant or refusal of sanction is not a quasi -judicial function. What is required to be seen by the competent authority is whether the facts placed before it by the investigating agency prima-facie disclose commission of an offence by a public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.
20 Spl.C.C.211/2018 9(k). From the entire cross-examination of PW.5, this Court can make out that the accused has failed to discredit the testimony of the witness and Ex.P13 sanction order. The suggestion tendered to the witness during the cross- examination has been specifically denied. Therefore, the evidence of PW.5 and Ex.P13 order has to be accepted. The law presumes that until the contrary is established, the authority has acted fairly and objectively and recorded its satisfaction based on the materials placed before it by the investigating agency.
9(l). It is settled law that the prosecution need not lead evidence of authority who accorded sanction. In the case in hand, the evidence on record show that all the materials were placed before the Board and the concerned Board has accorded the sanction and after approval and proposal to prosecute the accused, PW.5 as a Chairman of the Board has communicated the decision of the Board as per Ex.P13 order. Therefore, the application of mind regarding materials placed on record is by the Board and not by PW-5 in his individual capacity. Ex.P13 is the formal sanction order produced before the Court bears signature of PW.5. From the evidence of PW-.5, it is apparent that all the materials were placed before the 21 Spl.C.C.211/2018 Board and thereafter the Board has accorded sanction to prosecute the accused.
9(m). The sanction order should speak for itself and it is not necessary for the prosecution to lead evidence of the competent authority who has accorded the sanction. In the case in hand, PW.5 in clear and unambiguous terms has deposed that all the materials furnished by the investigating agency were placed before the Board and there is prima-facie allegations made against the accused and therefore the Board has proceeded to accord the sanction. The contents of Ex.P13 show that there is application of mind and it is not a mechanical order. The prosecution has placed all the records collected during the investigation and after going through those documents, the Board has accorded the sanction and Ex.P-13 order is inconsonance with the mandatory requirement under Section 19 of the PC Act. The grounds urged by the accused during the course of arguments challenging Ex.P-13 order is not legally sustainable in view of the settled principles of law laid down by the Apex court. There should not be any hyper technical approach to test the validity of Ex.P13 order. In the result there is a valid sanction 22 Spl.C.C.211/2018 as per Ex.P13 and hence my findings on point No.1 is in the affirmative.
10. Point No.2 and 3 :-
Since the aforesaid points are interconnected and in order to avoid repetition of reasons and for brevity, they are taken up together for common discussion. 10(a). The accused is charged for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the PC Act. The prosecution, in order to bring home the guilt of the accused, is required to satisfy the following requirements:
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed;
(ii) The accused accepted, or obtained, or agreed to accept or attempted to obtain illegal gratification from some person,
(iii) For himself or for some other person
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(iv) The accused accepted such gratification as a motive or reward for
(a)doing or forbearing to do an official act,
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or
(c) rendering or attempting to render any service, disservice to someone, with the Central Government or any State Government or Parliament or the Legislature of any State or 23 Spl.C.C.211/2018 with any local authority, Corporation or with any public servant, whether named or otherwise.
10(b) It is well settled law that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the PC Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act. The act alleged against the accused of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The demand of illegal gratification is sine qua non to constitute the offence under the PC Act. It is further well settled that mere recovery of currency notes from the accused itself does not constitute the offence under the said Act, unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. The ingredients of Section 13(1)(d) of the PC Act are:
public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage,
i) by corrupt or illegal means or
ii) by abusing his position as public servant or
iii) without any public interest.
24 Spl.C.C.211/2018 In the background of above parameters, now this court on the basis of oral and documentary evidence placed on record has to appreciate whether the prosecution is able to bring home the guilt of the accused.
10(c). The fundamental cardinal principle of criminal justice delivery system is, innocence of the accused shall be presumed till the charges are proved beyond reasonable doubt on the basis of clear, cogent, and credible evidence. It is also well settled principle of law that the burden of proof required to be discharged by the prosecution is; "proof beyond reasonable doubt" as held in 2015 (16) SCC 350 - Khaleel Ahmed vs. State of Karnataka. There is also a presumption under 20 of the PC Act available in favour of the prosecution in respect of the offence under Section 7 of the PC Act. But the benefit of the presumption can be extended when the prosecution discharges its initial burden of proof that the accused has demanded and accepted illegal gratification and thereafter the onus shifts to the accused to prove his defence by placing plausible explanation by way of cross-examination of the witnesses or by any other evidence.
25 Spl.C.C.211/2018
11. It is the definite case of the prosecution that PW.1 - Lakshmi Nagendra Prasad had filed an application through on- line before BWSSB on behalf of the applicants for obtaining water and sewerage connection for their newly constructed residential houses at Kumaraswamy layout, Bengaluru. In this regard, when the informant PW-.1 has approached the accused who is working as water inspector for obtaining water connection, he alleged to have demanded and accepted an illegal gratification of Rs.20,000/-. It is the evidence of PW.1 that the accused has demanded Rs.20,000/- gratification for each connection (Rs.40,000/- in all) and received Rs.20,000/- towards the advance amount and balance amount of Rs.20,000/- was agreed to be paid within few days. When the accused has accepted the tainted amount, the prosecution has claimed they have laid a successful trap.
12. In defence, the accused during cross-examination of the prosecution witnesses has admitted the following facts:
i) He is having acquaintance with PW.1 Lakshmi Nagendra Prasad and received Rs.20,000/- on 5.7.2017 during trap.
26 Spl.C.C.211/2018
ii) P.W-1 has filed an application on behalf of Smt.Thejaswini and Sri. Prem Kumar for obtaining water and sewerage connection to their newly constructed houses.
iii) The application filed by PW-1 was pending as on 5.7.2017.
iv) He has introduced PW.7 Govinda Raju, a plumber to the informant PW-1 and after spot inspection, the plumber had demanded a sum of Rs.20,000/- for each water and sewerage connection work to the proposed residential houses.
v) He had received a sum of Rs.20,000/- tainted currency notes from PW-1 in order to make payment of the said amount in favour of PW-.7 the plumber/contractor Govindaraju. The accused has submitted that he had not received the said amount towards illegal gratification or for doing any official favour to PW.1 in order to give water and sewerage connection to the residential premises of the applicants. As per section 58 of Indian Evidence Act, the facts admitted need not be proved.
13. In the above referred background of the case, this court at this stage is of the firm opinion that it is not necessary to refer the each and every minute details and relevant portion of oral and documentary evidence let in by the prosecution touching the entire pre-trap and trap 27 Spl.C.C.211/2018 proceedings. Since the accused has not disputed the entire trap proceedings, there is no need to refer the procedure followed during pre-trap and trap panchanama as deposed by the witnesses PW.1, 3, 4 and 11 in their evidence.
14. Amongst the prosecution evidence, PW-.1 Lakshmi Nagendra Prasad is the informant and he has deposed that on 4.7.2017 he went to ACB Police station and lodged Ex.P5 first information report against the accused. It is his contention that he was not interested in making payment of illegal gratification of Rs.40,000/- as demanded by the accused. PW- 9 - Anthony John, Dy.S.P., ACB, Bengaluru has deposed that on 4.7.2017 PW-1 appeared before ACB Police station and has lodged Ex.P5 first information statement and in pursuance he has registered Ex.P19 FIR and submitted the report to the Court along with Ex.P1 to P4 documents.
15. It is the evidence of PW-1 that he is doing BWSSB contract works for the past two years. It is stated that on 29.6.2017 he has applied through an on-line application for water and sewerage connection to the newly constructed residential buildings of the applicants at Kumaraswamy layout, Bengaluru. It is alleged that when he approached the accused 28 Spl.C.C.211/2018 in this regard, the accused had sent PW-7 - Govinda Raju, plumber and contractor to make spot inspection. It is the evidence of PW-1 that towards the road cutting fees and bribe, the accused has demanded Rs.20,000/- each per connection (Rupees 40,000/- in all). When the informant PW-.1 again approached the accused on 3.7.2021 and requested him to reduce the amount, he alleged to have agreed to do for Rs.15,000/- each, provided PW.1 obtains road cutting permission from BBMP. PW.1 has deposed that he had recorded the audio conversation and made video recording when he went to meet the accused. He further deposed that since he was not inclined to make payment of illegal gratification as demanded by the accused, approached ACB police and lodged Ex.P5 first information statement.
16. The accused in his evidence has admitted that on 5.7.2017 PW.1 came to the office and approached him at about 3.45 p.m. and paid a sum of Rs.20,000/- cash. It is the case of the accused that the said amount was paid and he had collected the amount from PW-.1 for and on behalf of PW-7 Govinda Raju. According to the accused he had received the said amount from PW-1 towards plumbing work, materials, and other requirement to give water and sewerage 29 Spl.C.C.211/2018 connection, road cutting permission and other fees in order to give water connection to the residential premises of the applicants. The accused has further admitted that after collecting Rs.20,000/- amount from PW-1, he had kept the said amount in the cupboard in his office and at that time ACB Police came and recovered the said amount during the trap proceedings.
17. Among the documentary evidence produced by the prosecution, Ex.P1 and P2 are copy of authorisation letter given to PW.1 by the applicants for obtaining water and sewerage connection to their newly constructed residential premises. PW.1 had enclosed these documents along with Ex.P5 first information statement. Ex.P3 and P4 are the copy of status of on-line application filed by PW.1 on behalf of the applicants. The accused has not disputed that as on the date of trap i.e. 5.7.2017 the application filed by the applicants was pending for consideration.
18. Ex.D1 is the explanation dated 05-07-2017 submitted by the accused to the Investigating Officer immediately after the trap. The contention of the accused in Ex.D1 explanation is clear and specific and it is necessary to 30 Spl.C.C.211/2018 reproduce the contents of the document for better understanding of his defence. The relevant portion of the document reads as under:
ಲಕಕಕಕನನಗಗಕಗದದ ಪದಸನದದ ರವರರ ಇವರ ಸಗಬಗಧಕರ ಮನಗಗಳಗಗ ನಕರನ ಸಗಪಕರ ಬಗಕಕಗಗದರ ಕರಮನರಸನಸಮ ಬಡನವಣಗ ಸಗಕವನ ಠನಣಗಗಗ ಬಗದರ ವಚನರಸಲರ, ನನನರ ಗಗಗಕವಗದರನಜರ ಪಪಗಬರದ ಇವರನರನ ಲಕಕಕಕ ನನಗಗಕಗದದ ಪದಸನದದ ರವರಗಗ ಪರಚಯ ಮನಡಕಗಗಟರಟ, ಇವರ ಮನಗಗಗ ನಕರನ ಸಗಪಕರಗಳರ ಕಗಗಡಸಲರ ಹಗಕಳದಗದನರ. ಅದರ ಪದಕನರ ಎರಡರ ಮನಗಗಳಗಗ ನಕರನ ಸಗಪಕರವನರನ ಕಗಗಡಸಲರ ಹಗಕಳದಗದನರ. ಅದರ ಪದಕನರ ಗಗಗಕವಗದರನಜರ ಪಪಗಬರದ ಇಲಪ ಸಸಳದಲಪ ಇಲಪದಗ ಇದದ ಪದಯರಕಕ ನನನರ ಗಗಗಕವಗದರನಜರ ರವರ ಪರವನಗ ರಗ.20,000/- ಇಪಪತರಕ ಸನವರ ರಗ.ಗಳನರನ ಇವರಗದ ತಗಗಗದರ ಕಗಗಗಡರರತಗಕಕನಗ.
In view of the aforesaid defence, the question arises for determination before this Court is: whether the accused is able to establish his defence during cross-examination of the prosecution witnesses and from the facts and other attending circumstance of the case and secondly whether it is a probable defence.
19. As per the evidence of PW.1, he has recorded the conversation made with the accused on 1.7.2017 and 4.7.2017 when he approached him in order to request to give water connection to the houses of applicants. The relevant
31 Spl.C.C.211/2018 portion of conversation which finds reference in Ex.P6 trap panchanama reads as under:
ಆರಗಗಕಪ ನನನರ ಇಪಪತದ ಇಪಪತದ ಹಗಕಳದನ ವತದ ಕಟಗಗಟಕದಗಲನಪ ಸಗಕರ ಪಗನನಲಟ ಎಲನಪ ಸಗಕರ ಆರಗಗಕಪ ಪಗನನಲಟ ರಗಗಕಡದಕಟಟಗಗದಪಮರಷನದ ಆರಗಗಕಪ ರಗಗಕಡದಕಟಟಗಗದತಬಗಕರಕಗಗದಗದ ಎಷನಟಗರತಗಕ ಕಗಕಳ ಆರಗಗಕಪ ಎರಡರ ರಗಗಕಡದಕಟಟಗಗದಅಗದಗದ ನಲಸತದಸನವದ ಚಲದದಗದ ಅಗರತಗಕ ಎಲನಪ ಸಗಕರ ಆರಗಗಕಪ ಇಲನಪ....ಯನರನದರದ........ಇನನನರನದರದ ಕಡಮಗಗ ಮನಡದಗದ ಮನಡಗಗಡಡಕಳ ಸನರದ......
ಆರಗಗಕಪ ಇಲನಪ ಸನರದ........ರಗಗಕಡದ ಕಟಗಗದ ಪಮರಶನದ ತಗದದ ಕಗಗಡ ಹದನಗನದದಸನವದಕಗಕ ಮನಡಡ ಬಹರದರ ಆರಗಗಕಪ ಏ ಬಗಕಡ ಬಗಕಡ ಯನರನದಗದ ಮನಡಡಗಗದಗದ ಮನಡಡಪಪ ನನ ಅದಗಕ ಹಗಕಳದರದ ಆರಗಗಕಪ ಏನಗಗಕ ನಕವದ ಬಗದಲಪ ಅಪದಕಚದ ಮನಡದದ ಕಗಗಕಸಕರ ಇದದ ಮನಡಕರಗಗಕದರ ಬಗಕರಗಕರದ ಹತದ ಮಗಬಗರಳ ಕತದ ಕಗಟನದಕಟಗರಳ ಹತದ ಹಗಗಕದಗದ ಅವವದ ಅದಕಗಕ ಮಗವತರಕ ಸನವರದದ ಮಕಲಗ ತಗಗಗಗಗತನರಗ ನಕವವ ಡಗನರಗಕನಟಗ ಇಲಪ ಅಪದಕಚದಮನಡಕ ಇದದರನ ಅದದಬಟರಟ ಅದರ ನನಮನಲನಪಗ ಏನದಯಕ ಅದನನ ನನನದ ಹಗಕಳದರದ ಯನರನನದಗದ ಕನಗಟಗಕದಟ ಮನಡಡಟರಟ ಆಮಕಲಗ ಬನನ ಅದಕಕಗತ ಕಮಮ ಯನರನದಗದ. ಫಯನರದ ಅದಗಕ ಅಗತರಗಗಕದರ ಬಗಕಕನದಗದ ದರಡರಡ ಕಗಗಡಕಕನ ಒಗದದ ಹದನಗನದರ ಸನವದ ಆರಗಗಕಪ ಅದಕಕಗತ ಯನರರ ಕಮಮ ಮನಡಕರಗಗಕ ದಯವಟರಟ ಮನಡಗಗಡಡಳಳ ನಮದಕನಗ ಅಬಗಬಕಡನದಇಲಪ ನನನದನಗನಗನನಗ ಎಲನಪ ಹಗಕಳದನ ಆರಗಗಕಪ ಸರ ನಗರನರದ ಜನ ಇದನರಗ ಎಲದಬಗಕಕನದರದ ಹಗಗಕಗದಬಹರದರ ಎಲಪ ಕಮಮ ಆಯಕದಗಗಕ ನಮಮ ಆರಗಗಕಪ ಒಗದರ ಆಗಲಪ ಇನರನ ಒಗದಗನದದಜನಸಕ ಕಗಗಡ ಹಗಕಳಕಕನ ನಮಮ ಖಚರಗಗ ಏನಗ ಇಲಪ ನಮಮ ಖಚರಗಗ ...... ಅದಗಕನಗಗಕ ನಕವದಬಗದದಕಗಕಳದದ ಅಗತ ಬನಯದ ಬಟಗಟ ಅವನ ಪಪಗಬರದ ಏನದ ಸನರದ ಇಷಗಗಟಗದದ ಕಮಮ ಹಗಕಳದದಲಪ ಸನರದ ಅಗದ ಏ ಸರಮನರಗಗಕ ದಗಕವಸನಸನದ ಅಚರಕರದ. ಆರಗಗಕಪ ಹಗಗ..... ನನನಗಕಳರಗಗಕದಗಕ ಕಮಮ ಸನರದ ಅದಗಕನಗಗಕ ನನನ ಬನಯಲಪ ಬಗತರ ನಮಮನದ ನಗಗಕಡಗದ ಬನಯಮ ಬಗತರ ಹಗಕಳದ ಬಟಗಟ ಯನರಗ ಮನಡಲಪ ಸನರದ ........ಮನಮಮದಒಗದದಕನಗಕಡನಗಮ 5 ರಗದ 10 ಸನವದ ಸಕದದದದ ಅವವದ ಮನಡಲಪ ನನವಗಗಲಪ ನಮಮ ಸನನಲದ ಬತಗನರತಗ ಮನಮಗಲ ಆಫಕಸದಕಗಲಡ ನನಮನಲದಆಗ ಹಗಕಳದರನ ಕಟಗಗಟಕದಗಲನಪ ಸಗಕರ ಕಗಗಡಗಡಕಕನಗರತಗಕ...ಹನಗ....
ಆರಗಗಕಪ ನನದ ಹತದಕಗಕ ಬಗದಗದ ನನನಗಕ ಬರಬಗಕಕರ ಬಕಗಗರಡಕಕನ ಬನನ ನನಗಮಕನರ ತಗಗಗದಗದ ಇಲಪ
32 Spl.C.C.211/2018
20. From the aforesaid conversation and the conversation recorded during the trap contained in the trap mahazar, we can apparently infer that the accused has received Rs.20,000/- from PW-1 towards the advance amount on behalf of PW-7 Govinda Raju for laying water and sewerage connection work. After receiving the aforesaid amount from the informant, the conversation shows the accused has assured to get the work completed and water connection will be given within a period of 10 days.
21. The prosecution has examined PW.7 Govinda Raju plumber by profession and as per the evidence, he is an approved contractor under BWSSB. As per his evidence, on 30.6.2017 along with PW-1 he went to Kumara Swamy layout for inspection of two houses belong to the applicants in order to give water and sewerage connection. During the cross- examination, P.W.7 has deposed that the amount of Rs.20,000/- as stated by him in his examination-in-chief pertains to the road cutting expenses, the materials, labour expenses for drawing water connection to the houses of the applicants. It is his specific evidence that on account of the instruction given by the accused, he had agreed to do the work for Rs.20,000/- per each connection. He further stated 33 Spl.C.C.211/2018 that PW-1 had agreed to make payment of Rs.20,000/- as advance amount directly to him or with the accused. The relevant potion of evidence of PW.7 as deposed in examination-in-chief reads as under :
ದದ30-06-2017 ರಗದರ ಆರಗಗಕಪ ನನನನರನ ಅಗಬನಭವನನ ದಗಕವಸನಸನದ ಬಳ 68 ನಗಕ ಕನದಸನಲಪ ಇರರವ ಮನಗ ನಗ.607 ಮತರಕ 608 ರ ಸಸಳ ಪರಶಕಲನಗ ಮನಡ ಒಳಚರಗಡ ಮತರಕ ಕನವಗಕರ ನಕರನ ಸಗಪಕರ ಕಲಪಸಲರ ಸಗಕಕವನಗರರತಕದಗಯಕ ಎಗದರ ತಳಸಲರ ಕಳರಹಸದದರರ. ನನನರ ಸಸಳ ಪರಶಕಲನಗ ಮನಡ ರಗಗಕಡದ ಕಟಟಗಗದ ಗಗ ರಗ.20,000/- ಹನಗಗ ರಗ.25,000/- ಖಚರರ ತಗಲರತಕದಗ ಎಗದರ ನನನರ ಲಕಕಕಕನನಗಗಕಗದದ ಪದಸನದದ ರವರಗಗ ತಳಸರರತಗಕಕನಗ. ನನನರ ಮರಳ ಬಗದರ ಆರಗಗಪಗಗ ಸಸಳ ಪರಶಕಲನಗ ಮನಡದ ಬಗಗಮ ಹಗಗಕಳರರತಗಕಕನಗ.
In the cross-examination PW.7 has admitted:
ನನನರ ಪರವನನಗ ಹಗಗಗದರರವ ಪಪಗಬರದ ಆಗರರತಗಕಕನಗ . ನನನರ ರಗ.20,000/-
ಮತರಕ ರಗ.25,000/- ಖಚರರ ಆಗರವವದರ ರಗಗಕಡದ ಕಟಟಗಗದ ಗಗ ಬಬಎಗಪ ಯಗದ ಅನರಮತಗನಗ ಕಟಟಗಗದ ಗಗ ತಗಲರವ ಸನಮಗದಗಳ ಖಚರರ ಹನಗಗ ಲಗಕಬರದ ಖಚರರ ಆಗರರತಕದಗ. ನನಗಗ ಲಕಕಕಕನನಗಗಕಗದದ ಪದಸನದದ ರವರ ಪರಚಯ ಇರರತಕದಗ. ಆರಗಗಕಪ ಹಗಕಳದದರಗದ ನನನರ ಸದರ ಕನಮಗನರಯನರನ ರಗ.20,000/- ಮತರಕ ರಗ.20,000/-
ಒಪಪಕಗಗಗಡರರತಗಕಕನಗ. ದದ05-07-2017 ರಗದರ ನನನರ BWSSB ಕಛಗಕರಗಗ ಹಗಗಕಗರರತಗಕಕನಗಗಕ ಇಲಪವಕ ಎಗದರ ನನಗಗ ನಗನಪಲಪ. ಲಕಕಕಕನನಗಗಕಗದದ ಪದಸನದದ ರವರರ ಕನಮಗನರಗಗ ಒಟರಟ ಖಚರರ ರಗ.40,000/- ಗಳಲಪ ರಗ.20,000/- ಮರಗಗಡ ಹಣವನಗ ಕಗಗಡರತಗಕಕನಗ ಎಗದರ ಒಪಪಕಗಗಗಡದದರರ. ಸದರ ಮರಗಗಡ ಹಣವನರನ ನನನ ಕಗನಯಲಪ ಅಥವನ ಆರಗಗಕಪಯ ಕಗನಯಲಪ ಕಗಗಟಟರರತಗಕಕನಗ ಎಗದರ ಹಗಕಳದದರರ ಎಗದರಗ ಸರ. ಆರಗಗಕಪಯ ಕಗನಯಲಪ ಕಗಗಡರವ ಮರಗಗಡ ಹಣವನರನ ಆರಗಗಕಪಯಗದ ಪಡಗದರಕಗಗಳಳಲರ ಹಗಕಳದದರರ
34 Spl.C.C.211/2018 ಎಗದರಗ ಸರ. ದದ05-07-2017 ರಗದರ ಫಯನರದ ನನಗಗ ಕಗಗಡಲರ ಎಗದರ ರಗ.20,000/- ಆರಗಗಕಪಯ ವಶದಲಪ ಕಗಗಟಟದದ ಬಗಗಮ ನನಗಗ ತಳದರಬಗತರ ಎಗದರಗ ನನಗಗ ನಗನಪಲಪ.
The aforesaid entire evidence of P.W.7 as deposed in his examination-in-chief and cross-examination is in consonance with the defence of the accused during the cross-examination of other prosecution witnesses and in Ex.D1 explanation. The testimony of PW-7 throws flood of light to the defence case.
22. The learned advocate for the accused has invited the attention of this Court to Section 59 and 82 of BWSSB Act and as per the said provisions of the Act, water supply and sewerage connection work has to be done by the licensed plumber. P.W-7 Govinda Raju is a licensed plumber is proved from the evidence and admission of P.W-1. It is not the case of P.W-1 that he is also a licensed plumber under BWSSB.
23. In order to appreciate the defence of the accused, it is necessary to refer the relevant portion of admission elicited during cross-examination of PW.1. During cross-examination, he has admitted that at the time of submitting applications seeking water connection, he had not enclosed road cutting 35 Spl.C.C.211/2018 permission obtained from the BBMP. The witness has further admitted in the evidence that as on the date of the application, there was no approved sketch issued by BBMP pertaining to the houses of the applicants. The relevant portion of the admission of PW.1 elicited during cross- examination reads as under:
18. ನನನರ ಮದಲ ಬನರಗಗ ಆರಗಗಕಪಯ ಕಛಗಕರಯಲಪ ಆರಗಗಕಪಯನರನ ಭಗಕಟ ಮನಡದನಗ ನನಗಗ ಪಪಗಬಗರಳ ಪರಚಯ ಇಲಪ, ಯನವವದನದರಗ ಪಪಗಬರದ ನರನ ಪರಚಯಸ ಕಗಗಡ ಎಗದರ ಕಗಕಳದಗದ ಎಗದರಗ ಸರ. ಆರಗಗಕಪ ಗಗಗಕವಗದರನಜರ ಎಗಬ ನಗಗಕಗದನಯತ ಪಪಗಬರದ ನರನ ನನಗಗ ಪರಚಯಸ ಅವರನರನ ನನನ ಜಗಗತಗ ಕಳರಹಸ ಸಸಳ ಪರಶಕಲನಗ ಮನಡರರತಗಕಕವಗ. ಸದರ ಗಗಗಕವಗದರನಜರರವರರ ಒಗದಗಗಗದರ ಮನಗಯ ಸಗಪಕರಕಗಕ ರಗಗಕಡದಕಟಟಗಗದ, ಸನಮಗದಗಳ ವಗಚಚ ಮತರಕ ಅವರ ಕಗಲ ಸಗಕರ ರಗ.25000/- ಗಳಗತಗ ಒಟರಟ ರಗ.50,000/- ಖಚರರ ಆಗರತಕದಗ ಎಗದರ ತಳಸದರರ ಎಗದರಗ ಸರ. ಆರಗಗಕಪ ಸದರ ಗಗಗಕವಗದರನಜರರವರ ಜಗಗತಗ ಮನತನನಡ ಒಗದಗಗಗದರ ಮನಗಯ ಸಗಪಕರಕಗಕ ರಗ.25,000/- ದಗದ ರಗ.20,000/- ಕಗಕ ಒಟರಟ ರಗ.40,000/- ಗಳಗಗ ಸದರ ಖಚರರ ಇಳಸರರತನಕರಗ. ಸದರ ರಗ.40,000/- ಕಗಕ ನನನರ ಒಪಪಕಗಗಗಡರರತಗಕಕನಗ.
20. ದದ05-07-2017 ರಗದರ ಬ.ಡಬಗಪಬಬ.ಎಸದ.ಎಸದ.ಬ. ಕಚಗಕರಗಗ ಹಗಗಕದನಗ ಗಗಗಕವಗದರನಜ ಎಗಬ ಪಪಗಬರದ ಅಲಪ ಇರಲಲಪ ಎಗದರಗ ಸರ. ನಕರರ ಮತರಕ ಒಳಚರಗಡ ಸಗಪಕರ ಪಡಗದರಕಗಗಳಳಲರ ಅರರದನರರರ BWSSB ಗಗ ಅರರ ಶರಲಕ, attachment fee, inspection fee, meter fee, sanitary point charges and connection fee ಕಟಟಬಗಕಕನಗರತಕದಗ ಎಗದರಗ ಸರ. ಪಗದಕಮದ ಕರಮನರದ ಮತರಕ ತಗಕಜಸಸ
36 Spl.C.C.211/2018 ಇವರ ಅರರಗಳಗಗ ಸಗಬಗಧಪಟಟಗತಗ ದದ05-07-2017 ರವರಗಗ ಈ ಮಕಲಗ ಹಗಕಳದ ಯನವವದಗಕ ಶರಲಕಗಳನರನ ಪನವತಸರರವವದಲಪ. ಅರರದನರರ ಈ ಮಕಲಗ ಹಗಕಳದ ಎಲನಪ ದನಖಲನತಗಳರ ಮತರಕ ಶರಲಕಗಳರ ಪನವತಯನದ ನಗತರ ಮನತದ ಜಲಪರವಕಕಕಕರರ ಸಸಳ ಪರಶಕಲನಗ ಮನಡಲರ ಬರರತನಕರಗ ಎಗದರಗ ಸರ.
24. The aforesaid admission of the witness clearly establish that PW1 himself requested the accused to introduce any licensed plumber and in pursuance it is PW.7, who has informed PW.1 as to an approximate expense required for obtaining water and sewerage connection for each houses approximately at Rs.20,000/-. PW.1 further admitted that he had agreed to pay Rs.20,000/- per each house totally Rs.40,000/- to PW-7 for obtaining water connection. PW.4 pancha during his cross-examination stated that PW.1 might have paid Rs.20,000/- to the accused in order to make payment of the said amount to Govinda Raju. The witness has not stated that the said amount was paid towards the bribe as demanded by the accused. The learned Special Public Prosecutor has failed to bring it to the notice of this Court any circumstances from the documentary and oral evidence showing that the accused had demanded Rs.20,000/- for each water connection as illegal gratification from the informant PW.1. It is also not the case of PW.1 that the accused and 37 Spl.C.C.211/2018 PW.7 have joined together and demanded excess amount or that the amount of Rs.20,000/- claimed by PW.7 also includes illegal gratification. PW.7 is an approved contractor and he is doing plumbing work only for his profit. Therefore, the admission of PW.1 elicited during his cross-examination as referred herein above supports the theory put forward by the accused in his defence. In the above circumstances, the judgments relied by the learned Special Public Prosecutor as referred supra are having no application to the facts and circumstances of the case.
25. It is settled law that suspicion howsoever strong, cannot take place of proof as held in AIR 2002 SC 3206 in the case between Ashish Bathem vs State of M.P. In this connection also referred the judgment reported in 2015(10)SCC 152 in the case between P.Sathyanarayana Murthy vs District Inspector of Police. The Apex court held that if two views are possible, then the benefit must be given to the accused. In the case on hand, as rightly pointed out by the learned defence counsel, the accused has established his defence with higher degree of proof by preponderance of probability. In the judgment reported in (2021)3 SCC 687 in the case of N. Vijaya kumar vs state of T.N. the Apex court 38 Spl.C.C.211/2018 held that the mere recovery of tainted money in the absence of proof of demand and acceptance cannot be said to be sufficient to convict the accused.
26. The learned Advocate for the accused has argued that Ex.P16 statement recorded under Section 164 of Cr.P.C. is not voluntary. During cross-examination of PW1, either the prosecution or the accused have made use of Ex.P16 statement of by invoking Section 145 of Evidence Act either for corroboration or for contradiction. In the present case the prosecution has not relied upon Ex.P16 statement to prove the charge against the accused as substantive evidence. Moreover in the case in hand, PW.1 has not deposed evidence by denying his earlier statement. Therefore, the judgment of the Apex court relied on by the learned Counsel for the accused referred supra in Somasundar case is not applicable to the facts of the case.
27. It is settled law that for arriving at the conclusion whether all the ingredients of an offence i.e. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the 39 Spl.C.C.211/2018 record in their entirety. For the said purpose, the presumption under section 20 the PC Act must also be taken into consideration. But the foundational facts must be established by the prosecution and thereafter the accused can be called to explain as to how the amount in question was found in his possession, In Mukthiar Singh case reported in (2017)8 SCC 136, the Apex court held that the prosecution has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered as an innocent.
28. From the evidence which has been discussed above shows that the accused has not obtained money of Rs.20,000/- from PW.1 by using corrupt or illegal means or otherwise abusing his official position as a public servant. Therefore, the charge against the accused cannot be sustained. The degree and character of burden of proof which is casted on the accused to rebut the presumption cannot be equated with the degree and character of proof which rests on the prosecution. The accused may rebut the presumption by showing mere preponderance of probability in his favour. In the case in hand, the accused has successfully discharged his onus of proof. It is not necessary for him to establish his case 40 Spl.C.C.211/2018 beyond reasonable doubt. It is well settled law that it is sufficient if the accused offers probable explanation of defence and he is not required to prove his defence by the strict standard of proof of beyond reasonable doubt. There is lack of evidence touching demand and acceptance of bribe as required under Section 7 of the PC Act. There is also absence of evidence that the accused voluntarily accepted M.O.14 cash towards the bribe. In the instant case, the prosecution has not been able to prove beyond all reasonable doubt that the accused has actually received the tainted currency notes by way of illegal demand and criminal misconduct.
29. In the case once the allegation regarding demand of bribe is proved to be false or not proved, the evidence regarding recovery of the same from the accused should be viewed with suspicion. The mere recovery of money does not exclude the possibility that the accused was an innocent recipient of money. The evidence placed on record by the prosecution regarding demand of bribe is not cogent and there is no acceptable and clinching evidence in support of the charge against the accused. After carefully considering all the evidence adduced on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. and the 41 Spl.C.C.211/2018 submission made on behalf of both parties, this Court is of the opinion that the prosecution has failed to prove the guilt of the accused under section 7 and 13(1)(d) of the P.C. Act. Thus point No.2 and 3 are answered in the negative.
30. Point No.4:- For the findings given on point No. 2 and 3 the accused is entitled to be acquitted and accordingly this court proceed to pass the following:
ORDER Acting under Section 248(1) of the Code of Criminal Procedure 1973 accused is acquitted for the offence punishable under Sections 7 and 13(1)(d) of The Prevention of Corruption Act, 1988. The bail bond and surety bond executed by the accused and his surety are hereby stand discharged.
M.O. No.14 cash of Rs. 20,000/- (Rupees twenty thousand) is ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to keep M.O. No. 2,11 to 13 CDs, along with file.
42 Spl.C.C.211/2018 Office is directed to destroy M.O. No. 3 to 10 after completion of appeal period as the same are worthless.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, pronounced and signed by me in the open Court on this the 29th day of November, 2021.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Lakshmi Nagendra Prasad
PW 2 : Jyothi Prakash
PW 3 : K.Rama
PW 4 : Bheemaraju
PW 5 : Tushar Girinath
PW 6 : Prem Kumar
PW 7 : Govinda Raju
PW 8 : Mallikarjuna Thimmalapura
PW 9 : Anthony John
PW 10 : Johnson Tom
PW 11 : Subramanyaswamy M.L.
PW 12 : Chandrika G.
43 Spl.C.C.211/2018
List of documents marked on behalf of prosecution:
Ex P 1 : Agreement Ex P 2 : Copy of the Agreement Ex P 3 : On-line copy of application report Ex P 4 : On-line copy of application report Ex P5 : Complaint Ex P5(a) : Signature of PW 1 Ex P5(b) : Signature of PW 9 Ex P6 : Pre-trap mahazar Ex P6(a) : Signature of PW 1 Ex P6(b) : Signature of PW 3 Ex P6(c) : Signature of PW 4 Ex P6(d) : Signature of PW 11 Ex P7 : Continuation of Pre-trap mahazar Ex P7(a) : Signature of PW 1 Ex P7(b) : Signature of PW 3 Ex P7(c) : Signature of PW 4 Ex P7(d) : Signature of PW 11 Ex P8 : Trap mahazar Ex P8(a) : Signature of PW 1 Ex P8(b) : Signature of PW 3 Ex P8(c) : Signature of PW 4 Ex P8(d) : Signature of PW 11 Ex P9 : Audio conversation transcription Ex P9(a) : Signature of PW 3 Ex P10 : Voice sample of accused No.1 Ex P10(a) : Signature of PW 3 Ex P11 : Voice sample of accused No.2 Ex P11(a) : Signature of PW 3 Ex P12 : Seal acknowledgment 44 Spl.C.C.211/2018 Ex P13 : Sanction order Ex P13(a) : Signature of PW 5 Ex P14 : Copy of the Board meeting notes Ex P15 : Copy of the Board decision letter Ex P16 : 164 Cr.P.C. Statement of P.w.1 Ex P16(a) : Signature of PW 1 Ex P17 : Certificate issued by Reliance communication Ltd. Under Section 65(B) of Evidence Act Ex P17(a) : Signature of PW 8 Ex P18 : C.D.R. details Ex P19 : F.I.R. in Crime No.27/2017 Ex P19(a) : Signature of PW 9 Ex P20 : Airtel CDR sheets Ex P21 : Copy of application form of complainant Ex P22 : Certificate under Section 65(B) of Evidence Act Ex P23 : Witness securing letter to Joint Commissioner Ex P24 : Office order of Joint Commissioner dtd.4.7.2017 Ex P25 : Transcription conversation dtd.1.7.2017 Ex P26 : Currency details sheet Ex P27 to: 15 pre-trap photographs Ex.P41 Ex P42 to: Further pre-trap and trap photographs Ex.P55 Ex P56 : Attested copies of case papers (Prem Kumar) Ex P57 : Attested copies of case papers (Tejashwini) Ex P58 : Attendance Register extract 45 Spl.C.C.211/2018 Ex P59 : Service particulars of the accused Ex P60 : Work distribution document of the accused Ex P61 : FSL report dated 20.7.2017 Ex P62 : Certificate u/S.65(B) of the Indian Evidence Act of Lakshmi Nagendra Prasad Ex P63 : Letter to Engineering department Ex P64 : Letter from Engineering department Ex P65 : Sketch Ex P66 : Certificate u/S.65(B) of the Indian Evidence Act of Suresh K. Ex P67 : Letter of B.W.S.S.B. Ex P68 : Application of Tejaswini C. Ex P69 : FSL report Ex P69(a): Signature of PW 12 Ex P70 : Sample seal impression Ex P71 : Cepstrum sheets (16 sheets) List of material objects marked on behalf of the prosecution:
MO 1 : Metal seal 'D' MO 2 : one DVD (Mobile recording) MO 2 (a) Cover MO 3: Sample solution bottle MO 4: Hand wash of witness/solution MO 5: Bottle containing the sample solution prepared during trap mahazar 46 Spl.C.C.211/2018 MO 6: Hand wash of pancha-2 solution bottle MO 7: Sample solution bottle (trap) MO 8: Right Hand wash of accused/solution MO 9: Left Hand wash of accused/solution MO 10 : Small cotton cloth MO 10 (a) Cover MO 11 : one DVD/voice recording conversation MO 11 (a) Cover MO 12 : one DVD/sample voice recording (Accused) MO 12 (a) Cover MO 13 : one DVD/voice recording of complainant (trap) MO 13 (a) Cover MO 14 : Cash of Rs.20,000/-
List of witnesses examined on behalf of defence side:
NIL List of document marked on behalf of defence side Ex.D1 - Explanation of the accused XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
47 Spl.C.C.211/2018
Judgment pronounced in the open
Court vide separate Judgment. The
operative portion of the Judgment reads as under:
ORDER Acting under Section 248(1) of the Code of Criminal Procedure 1973 accused is acquitted for the offence punishable under Sections 7 and 13(1)(d) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the accused and his surety are hereby stand discharged.
M.O. No.14 cash of Rs. 20,000/- (Rupees twenty thousand) is ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to keep M.O. No. 2,11 to 13 CDs, along with file.Office is directed to destroy M.O. No. 3
to 10 after completion of appeal period as the same are worthless.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.